2018 Issue 1


THE CHOICE OF COURT CLAUSE IN INTERNATIONAL CONSUMER CONTRACTS: THE EFFECTIVENESS OF CONSUMER ACCESS TO JUSTICE IN THE MERCOSUR COUNTRIES

Release date:2018-04-27
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Alberto do Amaral Júnior & Luciane Klein Vieira**


ABSREACT: In the Southern Common Market, the regional consumer protection issue has been a concern for legal scholars because of the absence of protection rules and the vulnerability which characterizes consumers. In this regard, the possibility of choosing the competent judge in international contracts of consumption becomes a measure of protection to the legally weaker party. This article mainly examines the changes in international jurisdiction in Argentine and Brazilian domestic law, and also considers the state of the art in the other States that did not even introduce modifications, to see whether they include the possibility of choosing the competent judge in international contracts of consumption or if this is partially or totally prohibited by the legislator, as a measure of legal protection in Mercosur States.


KEYWORDS: Cross-Border Consumers; International Contracts of Consumption; International Jurisdiction


I.Introduction

The Southern Common Market (MERCOSUR), created by the Treaty of Asuncion on 26th, March 1991, originally constituted by Argentina, Brazil, Paraguay and Uruguay, nowadays has two new members: Venezuela (2012) and Bolivia (2015). This expansion in the number of signatory States of the referred Treaty brought back to the regional scenario the concern with the regulation of the international contracts celebrated with the presence of a vulnerable part: the consumer.

However, even though there has been a concern by scholars on this topic, the reality in the bloc remains of great concern for cross-border consumers, due to the absence of rules. In this regard, it is worth mentioning that since 2012, the agreement on the law applicable to international consumer contracts has been under discussion, and since 1996 there is no longer any mention of the Santa Maria Protocol on international jurisdiction in the field of contracts with consumers.

All to see if in the MERCOSUR States there is the possibility of choosing the competent judge in the international contracts of consumption or if this was partially or totally prohibited by the legislator, as a measure of protection to the legal weak party.

As a result, the solution of some of the States Parties was to update their domestic international private law to cover consumer contracts in the international sphere.

In this regard, with respect to the subject that is the focus of this work - international jurisdiction in the area of consumer contracts -, we have recently had progress in both Argentine and Brazilian domestic law. Thus, in this article, we will seek to bring together the main changes in international jurisdiction in the referred countries, also considering the state of the art in the other States that did not even introduce modifications. All in order to observe if in the Mercosur States there is the possibility of choosing the competent judge in the international contracts of consumption or if this is partially or totally prohibited by the legislator, as a measure of legal protection.


II.International Jurisdiction and the Search for Protection of the Vulnerable Subject of the Consumer Relationship

Defining the competent judge is the first step in solving a private international law case and when this case involves a weak party, the role of the judge becomes especially relevant.

This because, based on the competent judge, the material law applicable to the case will be defined, according to the judge’s law that shall intervene in the case.

With regard to international jurisdiction, it is not incorrect to speak of the search for a forum for the weak party in a contractual relationship, provided that it offers some kind of protection. In this sense, Fausto Pocar already warned in the 1980s that consumer contracts should be given the option to the consumer to file a case at the most favourable court, either because it is the court closest to his/her residence, which shall reduce costs and facilitate his/her defence, or because it is the court in a country where the International Private Law System provides the application of a more favourable law, offers more protection to the weak party, or because the domestic law of the country to which this court belongs, will indicate to the concrete case the application of a rule of public order more favourable to consumers. Thus, questions related to jurisdiction will facilitate access to justice for those in need of protection, insofar as the jurisdiction, albeit indirectly, will support the solution of the case in accordance with the law that offers most protection to the weak party.2

From this, the trend observed in modern legislations is to open jurisdiction to the so-called "protection forums"3 of the weak party, in order to facilitate access to justice. Considering that, generally, the demands that involve the consumers are of small value,4consumers often give up on filling a court case, due to the complications and of the cost of a demand carried out abroad.

Based on this guideline, let us see how the subject is regulated in the MERCOSUR States domestic Law, beginning with the States that recently introduced substantial changes in their law, followed by a glimpse on how the issue is being addressed In the law of the other countries, that have not yet adopted a specific regulation for the international contracts with consumers.


III.The Recent Changes in the Domestic Source and the Specific Criteria of Direct International Jurisdiction for Contracts with Consumers

As already mentioned, in MERCOSUR the only countries that recently adopted special rules on international jurisdiction to protect cross-border consumers were Argentina and Brazil.


A.Argentina

As of August 1st, 2015, with the entry into force of the new Civil and Commercial Code of the Nation, the cross-border consumer came count on specific rules that discipline the international consumption relationship. 

Thus, on international jurisdiction, art. 2,654 of the new Code determines that:

"Consumer claims may be brought before the judges of the place where the contract is concluded, of compliance with the provision of the service, of the delivery of goods, of compliance with the guarantee obligation, domicile of the defendant or of the place where the consumer performs acts necessary for the conclusion of the contract. Also competent are the judges of the State where the defendant has a branch, agency or any form of commercial representation, when they have intervened in the conclusion of the contract or when the defendant has mentioned them for the purposes of compliance with a contractual guarantee. The demand brought against the consumer by the other contracting party can only be brought before the judges of the State of the domicile of the consumer. In this matter the agreement of choice of forum is not supported ".

As noticed from the wording given, the Argentine legislator opted for classic connection points and did not attribute to the judges of the State of the consumer’s domicile the competence to assess the demand, a weak point of the new legislation. Then, as a result, there is no option for the consumer to file a demand at his/her own court forum, for instance, the provider established or domiciled abroad, once the Code does not yet have rules establishing special court of law for consumer demands. In this sense, as we have warned on another occasion:

Would have been easier and more advantageous for cross-border consumers if the legislator, instead of listing a number of points of connection that brings more complexity to the international consumer relationship, had simply opened the jurisdiction of the judges of the consumer's domicile or residence, since a vulnerable party, which needs state measures that favour access to justice. Moreover, the rule, when imposing the international jurisdiction of the courts of the domicile of the consumer, for the demands proposed by the provider, as a mechanism that favours the procedural defence of the vulnerable party, it is not sufficient for purposes of specific material protection.5

With respect to the extension of jurisdiction, the new Code prohibits the choice of court agreements, stating in its justification that due to the presence of a weak-contracting party, which requires the protection of the legal order, the autonomy of the will in the matter deserves a differentiated regulation.6Thus, it can be interpreted that, according to the aforementioned norm, contract clauses of extension of jurisdiction inserted in contracts of adhesion, in addition to being considered abusive, will be considered null and void when they designate as competent the judges of the provider’s headquarters, which in some cases are in places unattainable to the consumer, becoming an exaggerated advantage in favour of the provider. 7

Finally, still on to the topic of choice of court or extension of jurisdiction, the comments made are interesting, which have to do with the fact that the imposition of a foreign court or arbitral tribunal, in international consumer contracts, can invalidate the consent given by the consumer due to the disparity of conditions or imbalance of the contracting parties. So:

The choice of a foreign judge - whether or not attached to a clause of choice of a foreign law - may have serious consequences for the consumer, since he/she may be deprived of the protection provided by the substantial rules of the State of his habitual residence. It means that, the risk of procedural defencelessness - which may always exist in an extension of internal territorial competition - is compounded by the risk of a substantial lack of defence, by subjecting the contract to a legal framework distinct from that reasonably known to the consumer. Therefore, in international contracts of adhesion to general conditions predisposed, it is natural the displeasure with which are the clauses of extension of jurisdiction in foreign judges or in arbitrators established abroad. The disparity of the bargaining power will invalidate consent according to certain indices, for example, the surreptitious incorporation of the extension clauses, the reference to annexed forms, the wording of the clause in a language other than the language used in the previous negotiations or in the fund contract, etc. The judges will be able to assess whether the extension puts the adherent in difficulties to gain access to the jurisdiction with reasonable possibility of defence.8


B.Brazil

The new Brazilian Code of Civil Procedure, sanctioned on March 16th, 2015, Law N. 13.105, contemplates in its art. 22, item II, the international jurisdiction of Brazilian judges when the consumer has domicile or residence in Brazil, a solution that greatly facilitates access to legal services for cross-border consumers.

However, it remains to be seen whether the intention of the legislator, in drafting the special jurisdictional hypotheses provided for in art. 22, intended to provide protection to vulnerable subjects, would be to attribute to this article the status of a rule of exclusive international jurisdiction, so as to exclude the competence of the foreign judge or concurrent international jurisdiction, which would allow the processing of international lawsuits of consumption before a unknown jurisdiction, other than that of the domicile of the consumer. In any case, we have already expressed favourably9 to the idea that this is a rule of exclusive jurisdiction, with an international public order character, a measure designed to facilitate access to justice for cross-border consumers.

If so, art. 25, paragraph 1 of the new Code, by allowing the choice of court in international contracts in general, and excluding the jurisdiction of the elected foreign authority, when the Brazilian judge has exclusive jurisdiction, must be interpreted from the principle of maximum protection to consumers, since it makes no specific reference to international contracts concluded by consumers. That is to say, if the intention of the legislator was to facilitate access to the jurisdiction of the weak legal party, the provider cannot, in a contract of adhesion, remove the application of this postulate, indicating as competent a foreign judge. Therefore, the jurisdiction of the judges of the domicile or residence of the consumer should be a mandatory right, not allowing the extension of jurisdiction in international consumer contracts concluded in Brazil. 10 This understanding is in accordance with the provisions of art. 51, section IV of the Consumer Defence Code, which determines that the clauses in consumer contracts that establish abusive obligations, which put the consumer at a disadvantage and in a situation incompatible with the good faith fulfilment of the obligations assumed, are null and void. Then, a clause of choice of foreign forum, by requiring the consumer to know extra-foreign rights and demand excessive expenses with hiring abroad lawyer, transfers, translations, legalizations, etc. Accentuates even more the vulnerability of the consumer and therefore should not be accepted by the Brazilian legal system for making it difficult to access the jurisdiction.

In addition, it is pertinent to mention that the Bill of Law No. 28111 on electronic commerce, presented on March 14th, 2012, is currently being processed in the National Congress of the country. This project contemplates, in matters of international jurisdiction for contractual and extra-contractual civil liability actions, a new wording attributed to art. 101 of the Consumer Defence Code, which provides the jurisdiction of the judge of the domicile of the consumer for the international claims in which he /she is a party or a defendant, following, with respect to the first option, the criterion adopted by the aforementioned Code of Procedure. In addition, it allows the consumer, resident in Brazil, 12 to choose other available forums, such as the courts of the venue or performance of the contract and those of the provider's headquarters. Added to this, the Bill of Law inserts, at the end of the article, the possibility that the consumer files the demand before the judge of the forum most connected to the case, introducing, in the country, the principle of proximity. Likewise, the normative proposal, expressly, leaves null and void the clauses of choice of forum, whether judicial or arbitral, inserted in consumer contracts.


IV.The Traditional Connection Criteria for Direct International Jurisdiction and The Lack of Regulation for Consumer Contracts

With the exception of Argentina and Brazil, the other MERCOSUR member states do not currently have special legislation to regulate access to international jurisdiction for consumers. In spite of the above, the cases involving the cross-border consumers increase and demand response. Let us see, in this sense, what alternative solutions provide Bolivia, Paraguay, Uruguay and Venezuela on the subject.


A.Bolivia

With regard to Bolivian private international law, there are no special rules designed to provide protection to the consumer acting beyond national borders. Thus, in an international legal situation involving consumers, it is necessary to appeal to the provisions laid down for international contracts between parties under equal conditions.

In order to worsen the situation of the vulnerable subjects with respect to direct international jurisdiction, Bolivian law does not provide for specific provisions for international contracts, insofar as it has only rules that establish domestic jurisdictional jurisdiction.13

On the other hand, it is possible to indicate that the country’s legal system allows the extension of jurisdiction, provided that it is done by express or tacit consent of the parties, as determined by art. 28, of the Organización del Poder Judicial dated February 12th, 1993, and art. 13 of the Law of the Ley del Órgano Judicial, dated June 23, 2010. In addition, it is important to note that Law No. 708 on international conciliation and arbitration was published on June 25th, 2015, which also accepts it.

Although this law makes no reference to international consumption, its provisions should be emphasized, given the possibility of being applied to an international contract in which the consumer participates, since it does not exclude it from its scope.14

Regarding the subject, in what refers to the international jurisdiction, the norm reiterates the possibility of extension of jurisdiction in favour of arbitral tribunals with headquarters abroad, in its art. 54, paragraph II. In addition, on November 19th, 2013, Bolivia approved its Civil Procedure Code, which entered into force on August 6th, 2015. 

    The new legislation still does not adopt special rules for international consumer contracts and likewise does not provide for provisions relating to international jurisdiction for the contractual area. On the other hand, it maintains the possibility of extension of jurisdiction by express or tacit consent, in its art. 13, which had already been recognized by previous legislation

    In other words, in Bolivia, in addition to not having express protection to facilitate access to justice, cross-border consumers may find themselves in a situation where the international contract provides for a clause chosen by a foreign judge as competent or even an arbitrator, who may decide based on the law or equity, ignoring the protective rules of the national system determined as applicable.


B. Paraguay

On January 15th, 2015 was enacted Law No. 5.393 on the Law Applicable to International Contracts, effective as of January 21st of the same year. Although considered a revolutionary instrument in contractual matters, incorporating the advances of soft law, it does not address international jurisdiction and specifically determines that it will not apply to contracts with consumers.

Thus, in Paraguay, there are still no special rules designed to offer consumer protection in the international arena. Thus, it is necessary to appeal to contractual rules established for relations between people in equal positions, to seek the solution of the concrete case that involves cross-border consumers, which generates situations of evident lack of protection, as in Bolivia. 

In terms of direct international jurisdiction, art. 17 of the Code of Judicial Organization, sanctioned by Law No. 879/1981, determines that the judge of the place agreed for the fulfilment of the obligation and, failing that, the jurisdiction of the defendant's domicile, or that of the place of the contract, provided that the defendant is at his or her choice. In addition, art. 19 of the aforementioned Code states that a Paraguayan judge may be asked to comply with contracts that must be executed in that country, even if the defendant does not have domicile or residence in Paraguay.

However, if the debtor has his/her domicile in this country and the contract should be fulfilled outside of Paraguay, he/she can be demanded before the judges of his/her domicile.15In other words, the international consumer can only demand the supplier at his/her headquarters or at the place where the contract was executed, i.e. where the goods were delivered or the service rendered.

In matters pertaining to the extension of jurisdiction by autonomy of the will of the parties, the matter regulates art. 316of the Code of Civil Procedure, Law No. 1337/1988, and art. 617of the Code of Judicial Organization. However, these articles contain a confusing wording which, moreover, seems to limit the autonomy of the will intended to determine jurisdiction in favour of a foreign court.18

Also, there is no regulation on the choice of court that serves for international consumer contracts. However, if it is true that the choice of a foreign forum for international contracts is limited, this measure is to benefit consumers, since the provider who’s headquarter is outside the country cannot establish a contractual clause in these terms.19


C.Uruguay

In Uruguay, there are no specific provisions on international consumer protection that are in force.20 This is because Law No. 17.250 / 2000:

"exclusively deals with the consumer relations that are configured within the limits of the Republic, and lacks provisions applicable to the internationality of relations, whether the Uruguayan consumer moves beyond borders to perform an act of consumption or when without leaving the country, acquires a good abroad for personal, family or domestic use, or in cases where the foreign provider renders the service from his/her own country. "21

In this regard, with respect to the rules of direct international jurisdiction, Uruguay has them condensed in the Appendix of the Civil Code and in the Organic Law of the Judiciary and the Organization of Courts. The general rule, which can be drawn from art 2.40122 of the Code is that of the international jurisdiction of judges of the State whose law was designated to regulate the material legal relationship, however, the plaintiff may opt for the jurisdiction of the courts of the domicile of the defendant.

Regarding the subject, as provided in art. 2,40323 of the Uruguayan Civil Code, these two bases of jurisdiction cannot be modified by the will of the parties, except to the extent authorized by law. That is, the country, in general, does not accept the extension of jurisdiction in favour of foreign courts, unless the law that regulates the material relationship so allows.

However, it is important to emphasize that the doctrine generally maintains that, considering that the legal system of consumer protection is of public order, it cannot be modified by the will of the parties, not even unilaterally, by only one of them24, so the possibility of choice of court in an international contract with consumers is not allowed. In this sense, the comments of Cecilia Fresnedo de Aguirre are pertinent, to whom:

"When autonomy of the will is admitted in international contracts, it is assumed that these are contracts that have been freely negotiated. With respect to adhesion contracts, especially those that are celebrated with consumers, these systems have a protective framework that is extremely restrictive and does not allow any kind of abusive clause to work. In particular, it is prohibited to choose jurisdiction clauses, which are usually intended to subject the case to jurisdictions inaccessible to the consumer, lacking a minimum protection for the consumer, or simply coincident with the country of the provider, as well as seek the application of a less favourable consumer legislation. In the strict sense it cannot be said that the autonomy of the will is limited because it does not exist directly if one of the parties is the one that chooses the forum and the other can only accept or reject the conclusion of the contract. However, limiting autonomy is not the only way to protect the consumer in international contracting. "25

In order to fill the gaps left by the current conflicting law on international consumer relations26, the 2008 Draft General Law on Private International Law, drawn up within the framework of the Ministry of Foreign Affairs, establishes rules on international jurisdiction to contracts with consumers. On September 11th, 2013, the Project lost its parliamentary status, but was again sent to Parliament by the Executive Branch. Recently, on September 7th, 2016, the text was finally approved by the House of Representatives, and is currently under analysis, within the Senate. There, on November 29th, 2016, it was decided to postpone its treatment, by the Constitution and Legislation Commission.27

The Project, in its art. 58, paragraph "d", provides for special rules of jurisdiction, determining that Uruguayan courts will have jurisdiction in the international sphere if the consumer is the plaintiff and if the contract has been concluded or the service has been performed in the country or in the country of the delivery of the goods object of the consumption relation. In addition, in art. 59, subsection 2, the normative proposal expressly determines that agreements with clauses of choice of court in the matter of consumption are not accepted, rejecting, in this way, the use of the autonomy of the will of the parties, due to the presence of the weaker party.


D.Venezuela

The Venezuelan legal system does not adopt specific rules on private international consumer law.28 Such lack of regulation entails the absence of specific rules designed to protect cross-border consumers. In view of the lack of legal provision, which is repeated in most MERCOSUR countries, the general contractual rules of the Private International Law of 9th July 1998 should be used.

In this regard, in matters of direct international jurisdiction, art. 39 of the aforementioned rule contemplates the main criterion, which is the one that attributes jurisdiction to the judges of the place of domicile of the debtor or defendant. Complementing the general rule, art. 40 states that in the event that the defendant is domiciled outside the Bolivarian Republic, Venezuelan courts will have jurisdiction on judgments arising from the exercise of patrimonial content actions, when the obligations must be executed in the territory of the country or are derived from contracts concluded or facts verified in the such territory; When the defendant has been summoned personally in Venezuela; or when the parties expressly or tacitly submit to this jurisdiction.

Adapting the text of the aforementioned article to situations involving consumers, Claudia Madrid Martínez points out that in cases where the provider of goods or services is domiciled outside Venezuela, Venezuelan courts will be competent on patrimonial related demands if the products or services in question have been made available to the consumer in Venezuelan territory, if the contract has been made in the country or if in the country the obligation should be fulfilled or if the facts had been verified in the country which gave rise to the obligation.29Thus, adopting this broad interpretation provided by the author, the consumer is allowed to submit to the Venezuelan judges demands against the provider of products and services located abroad, which facilitates access to justice, a solution quite in line with modern Legislation, which directly establish a forum for protection.

With regard to the extension of jurisdiction, art. 47 of the law warns that the jurisdiction that corresponds to the Venezuelan courts can not be revoked in favour of foreign judicial or arbitral tribunals, in the case of matters related to real rights over real property, non-negotiable or that affect public order. In other cases, according to jurisprudence, the agreements of choice of court are allowed.

Thus, given this breadth of Venezuelan conflicting law, in relation to international contracts concluded by consumers, there must be a mechanism that prevents the extension of jurisdiction if it leaves the consumer deprived of the jurisdictional benefit. In these terms, as has already been advanced on another occasion,

If it is agreed that the dispute must be resolved before a foreign court, given the characteristics of the case, and if this choice of court agreement affects Venezuela's essential principles, it may be dismissed and the Venezuelan courts may assume jurisdiction to provide reasonable protection to the consumer.30

Thus, for reasons of public order, the Venezuelan judge may assume jurisdiction, avoiding that "the consumer is dragged by the supplier of the good or service to litigate in a forum totally foreign to him."31 Likewise, if the consumer does not have the means to respond to a lawsuit filed abroad, the refusal to grant jurisdiction to the Venezuelan courts would constitute a true violation of the principle of effective judicial protection, established in article 26 of the National Constitution.


V.Conclusion

Based on the abovementioned, it is possible to establish a comparison between the internal systems of the MERCOSUR State Parties, regarding the regulation of international jurisdiction in the area of consumer contracts.

This comparison allows us to verify that only two countries - Argentina and Brazil - adopt rules that establish special criteria to bring the jurisdiction closer to consumer’s needs, facilitating access to justice, although in the case of Argentina there is no legislative adoption by the choice of court for the consumer residence, as a forum for protection. The other States, however, do not have specific rules, which leave the cross-border consumer emerged in legal insecurity and lack of protection.

With respect to the extension of jurisdiction or choice of court in international consumer contracts, only Argentina provides for an express rule, which completely rejects the autonomy of the parties' will in this matter, as a measure of maximum consumer protection, which in general, cannot discuss clauses in consumer contracts, most of which are adhesion.  With respect to the other countries, none of them adopts an express rule, neither accepting nor rejecting the autonomy of the will. Notwithstanding this, only Bolivia seems to accept the possibility of foreign court election in international contracts concluded by the consumer, and may even have an extension of jurisdiction in favour of foreign arbitrators. Other states, although not adopting explicit rules, seem to reject the possibility of foreign forum choice, when a vulnerable subject participates in the international contract.

Below, the comparative table, with the main solutions adopted by the States Parties of the group.


table4.jpg


As it is easily verified, it is urgent and necessary the adoption of internal rules by all MERCOSUR States, intended to regulate the subject of international jurisdiction in consumer contracts, especially to reject the possibility of the provider inserting in the contract a clause of choice of a foreign court that limits or prevents the consumer from accessing justice. In this sense, the experiences of Argentine and Brazilian law can be used as paradigms of codification by other states, without being considered as an absolute truth, considering the aforementioned critics.


References

All Paula María. “La construcción de un sistema de protección del consumidor en el MERCOSUR: avances y desafíos de cara a la CIDIP VII”. En: Revista de Derecho Privado y Comunitario. Nº 3. 2006. 

Amaral Junior Alberto do; Vieira Luciane Klein. “A jurisdição internacional e a proteção do consumidor transfronteiriço: um estudo comparativo entre as recentes alterações legislativas verificadas no Brasil e na Argentina.” In: RAMOS, André de Carvalho (Org.) Direito Internacional Privado: questões controvertidas. (Belo Horizonte: Arraes, 2016).

Ferraco\ Ricardo. Parecer da Comissão Temporária de Modernização do Código de Defesa do Consumidor. Disponible en: http://www12.senado.gov.br/noticias/Arquivos/2013/12/17/integra-do-relatorio-final, consultado el 26/3/2017.

Fresnedo De Aguirre Cecilia. “Uruguay”. En: FERNÁNDEZ ARROYO, Diego P. (Ed.) Consumer Protection in International Private Relationships – La Protection des Consommateurs dans les Relations Privées Internationales. (Asunción: CEDEP, 2010). 

Fresnedo De Aguirre Cecilia. Curso de Derecho Internacional Privado. Tomo II – Parte Especial. Vol. 2. (Montevideo: Fundación de Cultura Universitaria, 2009). 

Fresnedo De Aguirre Cecilia; Lorenzo Idiarte Gonzalo A. “El proyecto uruguayo de Ley General de Derecho Internacional Privado (2008)”. En: Revista DeCita. Nº 11. 2009. p. 429.) Su texto está disponible en: https://asadip.files.wordpress.com/2009/05/decita-11-uruguay-leydipr-texto-oct08-finalfinal.pdf, consultado el 3/4/2017.

Hargain Daniel; Mihali Gabriel. “Uruguay”. En: Esplugues Mota Carlos; Hargain Daniel; Palao Moreno Guillermo (Dirs.) Derecho de los Contratos Internacionales en Latinoamérica, Portugal y España. (Buenos Aires: BdeF, 2008). 

Lorenzetti Ricardo Luis. Comercio Electrónico. (Buenos Aires: Abeledo Perrot, 2001). 

Madrid Martinez Claudia. “El derecho internacional privado venezolano y su respuesta frente al consumidor internacional”. En: Marques Cláudia Lima; Fernandez Arroyo Diego P.; Ramasay Iain; Pearson Gail (dirs.) The Global Financial Crisis and the Need for Consumer Regulation: new developments on international protection of consumers. La Crisis Financiera Mundial y la Necesidad de Regulación de la Protección de los Consumidores: nuevos desarrollos en la protección internacional de los consumidores. (Porto Alegre/Asunción: Orquestra Editora, 2012). 

Madrid Martinez Claudia. “Relaciones de las empresas con sus clientes. Relaciones de consumo”. En: Madrid Martinez Claudia (Coord.) La Empresa y sus Negocios de Carácter Internacional. (Caracas: Academia de Ciencias Políticas y Sociales, 2011). 

Madrid Martinez Claudia. “Venezuela”. En: FERNÁNDEZ ARROYO, Diego P. (Ed.) Consumer Protection in International Private Relationships. La Protection des Consommateurs dans les Relations Privées Internationales. (Asunción: CEDEP, 2010). 

Marques Cláudia Lima. “Brésil”. In: FERNÁNDEZ ARROYO, Diego P. (ed.) Consumer Protection in International Private Relationships. La Protection des Consommateurs dans les Relations Privées Internationales. (Asunción: CEDEP, 2010). 

Marques Cláudia Lima. “Comercio electrónico de consumo internacional: modelos de aplicación de la ley más favorable al consumidor y del foro más conveniente”. In: DREYZIN DE KLOR, Adriana (Dir.). Los Derechos del Consumidor. Visión Internacional. Una Mirada Interna. (Buenos Aires: Zavalia, 2012). 

Najurieta María Susana. “Prórroga abusiva de la competencia en un contrato de adhesión”. In: Microjuris. MJ-DOC- 939-AR.

Pocar Fausto. "La protection de la partie faible en droit international privé". In: Recueil des Cours de l’Académie de Droit International. Tomo 188. 1984. 

Ruiz Diaz Labrano Roberto. Derecho Internacional Privado.(Asunción: La Ley Paraguaya, 2010). 

Vieira Luciane Klein. La Hipervulnerabilidad del Consumidor Transfronterizo y la Función Material del Derecho Internacional Privado. Buenos Aires: Departamento de Publicaciones de la Facultad de Derecho de la Universidad de Buenos Aires/ La Ley, 2017 (in prelo).

Vieira Luciane Klein. Protección Internacional del Consumidor. Procesos de Escasa Cuantía en los Litigios Transfronterizos. (Buenos Aires: BdeF, 2013).



1 Translation by Ana Cândida Muniz Cipriano. 

** Alberto do Amaral Júnior is Doctor of Law, Lecturer and Associate Professor of the Faculty of Law of the University of São Paulo (USP), Director of BRASILCON Institute.

Luciane Klein Vieira is Doctor in International Law (University of Buenos Aires - UBA), Master in Private International Law (UBA) and Law of Economic Integration (Universidad del Salvador / Universitè Paris I), Professor of Faculties of Campinas (FACAMP), Pontifical Catholic University of Campinas (PUCCAMP) and UBA, Director of BRASILCON Institute.

2 Pocar Fausto. "La protection de la partie faible en droit international privé". In: Recueil des Cours de l’Académie de Droit International. Tomo 188. 1984. pp. 398-399 apud VIEIRA, Luciane Klein. La Hipervulnerabilidad del Consumidor Transfronterizo y la Función Material del Derecho Internacional Privado. Buenos Aires: Departamento de Publicaciones de la Facultad de Derecho de la Universidad de Buenos Aires/ La Ley, 2017 (in prelo).

3 Marques Cláudia Lima. “Comercio electrónico de consumo internacional: modelos de aplicación de la ley más favorable al consumidor y del foro más conveniente”. In: DREYZIN DE KLOR, Adriana (Dir.). Los Derechos del Consumidor. Visión Internacional. Una Mirada Interna. (Buenos Aires: Zavalia, 2012). 127-156.

4 Vieira Luciane Klein. Protección Internacional del Consumidor. Procesos de Escasa Cuantía en los Litigios Transfronterizos. (Buenos Aires: BdeF, 2013).

5 Amaral Junior Alberto do; Vieira Luciane Klein. “A jurisdição internacional e a proteção do consumidor transfronteiriço: um estudo comparativo entre as recentes alterações legislativas verificadas no Brasil e na Argentina.” In: RAMOS, André de Carvalho (Org.) Direito Internacional Privado: questões controvertidas. (Belo Horizonte: Arraes, 2016). P. 320.

6 The prohibition of jurisdiction extension in consumer contracts is also referred to in art. 1.109, according to which, clauses providing for this extension shall be considered as unwritten law.  

7 Lorenzetti Ricardo Luis. Comercio Electrónico.( Buenos Aires: Abeledo Perrot, 2001). P. 252.

8 Najurieta María Susana. “Prórroga abusiva de la competencia en un contrato de adhesión”. In: Microjuris. MJ-DOC- 939-AR.

9 Amaral Junior Alberto do; Vieira Luciane Klein. Op. cit. 310-323.

10 This solution was already being adopted in the country, even before the new Code of Procedure was in force, as already mentioned. The Secretariat of Economic Law of the Ministry of Justice in Regulation No. 4 of March 13, 1998, item 8, already said that the choice of forum to settle conflicts in consumer relations is an abusive clause if the forum resulting from the Choice is different from that in which the consumer resides. This guidance was also adopted for international consumer contracts. About the topic see: MARQUES, Cláudia Lima. “Brésil”. In: FERNÁNDEZ ARROYO, Diego P. (ed.) Consumer Protection in International Private Relationships. La Protection des Consommateurs dans les Relations Privées Internationales. (Asunción: CEDEP, 2010). p. 65.

11 On November 11th, 2015 the project was approved in the ambit of the Senate, Pending approval by the Federal Chamber of Deputies, where it received the number PL 3514/2015.

12 The determination that the consumer be a resident in Brazil was inserted by the Federal Senate into the text prepared by the Temporary Committee, with the justification of clarifying the privilege of a forum for consumers residing in the country, in order to avoid inconsistencies. (See: FERRAÇO, Ricardo. Parecer da Comissão Temporária de Modernização do Código de Defesa do Consumidor. Available at: http://www12.senado.gov.br/noticias/Arquivos/2013/12/17/integra-do-relatorio-final, (Accessed March 23rd, 2017).

13 The rules of domestic jurisdiction are in art. 10, section 2 of the Code of Civil Procedure, according to which, in cases of express or tacit renewal of jurisdiction, "in the demands for personal actions, the competent judge is the one of the defendant's domicile; the place where the obligation must be fulfilled; or where the contract was signed, at the plaintiff's choice". By transferring these solutions to the international sphere, the competent judge would be the one of the State of the domicile of the defendant; the place of execution or the conclusion of the contract.

14 See articles 4 and 5.

15 ALL, Paula María. “La construcción de un sistema de protección del consumidor en el MERCOSUR: avances y desafíos de cara a la CIDIP VII”. In: Revista de Derecho Privado y Comunitario. Nº 3. 2006. P. 544.

16 Article 3: “The competence attributed to the judges and courts is non-extendible. Except territorial jurisdiction, which may be extended by agreement of parties, but not in favour of foreign judges, except as provided in special laws.”

17 Article 6 establishes: “The jurisdiction is non-extendable, except for territorial jurisdiction, which may be extended by parties' compliance in civil and commercial trials, and may not be delegated. Judges and tribunals shall know and decide for themselves the judgments of their jurisdiction, but may, when necessary, commission other judges for specific proceedings”.

18 About this theme see: Ruiz Diaz Labrano Roberto. Derecho Internacional Privado. (Asunción: La Ley Paraguaya, 2010). P. 693.)

19 Vieira Luciane Klein. La Hipervulnerabilidad del Consumidor Transfronterizo y la Función Material del Derecho Internacional Privado. Op. cit.

20 Fresnedo De Aguirre, Cecilia. “Uruguay”. In: FERNÁNDEZ ARROYO, Diego P. (Ed.) Consumer Protection in International Private Relationships – La Protection des Consommateurs dans les Relations Privées Internationales. (Asunción: CEDEP, 2010). P.547.

21 Hargain Daniel; Mihali Gabriel. “Uruguay”. In: Esplugues Mota Carlos; Hargain Daniel; Palao Moreno Guillermo (Dirs.) Derecho de los Contratos Internacionales en Latinoamérica, Portugal y España. (Buenos Aires: BdeF, 2008). P. 776.

22 Article 2.401 establishes: “the judges of the State whose law corresponds the knowledge of international relations are the competent ones. In the case of personal patrimonial actions, these may also be exercised, at the option of the plaintiff, before the judges of the country of the domicile of the defendant”.

23 Article 2.403 of the Civil Code, like article 2.401, is in the Appendix of the mentioned law. According to such article: “The rules of legislative and judicial competence determined in this Title, can not be modified by the will of the parties. This can only act within the margin that gives the competent law.” As it can be seen, that originates the restrictions on jurisdiction extension.

24 Fresnedo De Aguirre Cecilia. Curso de Derecho Internacional Privado. Tomo II – Parte Especial. Vol. 2. (Montevideo: Fundación de Cultura Universitaria, 2009). P. 281.

25 Fresnedo De Aguirre Cecilia. Curso de Derecho Internacional Privado. Op. cit. page 283.

26 About the Uruguayan project, it is worth mentioning that: “the idea of revising and updating the Uruguayan internal law rules of private international law (IPR) in force began to materialize in 1994, based on the initiative that Prof. Didier Opertti Badán raised in the Institute of International Private Law of the Faculty of Law of The University of the Republic. A group composed of several members of the Institute was appointed, assigning it the task of elaborating a first draft national law on International Private Law, starting with the general theory. Once this stage was fulfilled, an impasse occurred, culminating in the reactivation, once again at the request of Prof. Opertti, when, as Minister of Foreign Affairs of Uruguay, he formally appointed a Working Group to prepare a draft General Law for International Private Law replacing the Appendix to Civil Code. The above process culminated in the presentation to the Parliament, on 14 September 2004, of a draft General Law on International Private Law and its corresponding Explanatory Memorandum. The same one was not opportunely approved and attentive to the change of legislature operated from 15 of February of 2005, lost parliamentary state. The Working Group then undertook the task of polishing up drafting and harmonization, culminating in 2008. Finally, the new text of the draft General Law on International Private Law was presented to the Minister for Foreign Affairs at the end of 2008, which was sent to Parliament in early 2009”. (Fresnedo De Aguirre Cecilia; Lorenzo Idiarte Gonzalo A. “El proyecto uruguayo de Ley General de Derecho Internacional Privado (2008)”. In: Revista DeCita. Nº 11. 2009. page 429.) Available at: https://asadip.files.wordpress.com/2009/05/decita-11-uruguay-leydipr-texto-oct08-finalfinal.pdf, (accessed August 3, 2015).

27 Vieira Luciane Klein. La Hipervulnerabilidad del Consumidor Transfronterizo y la Función Material del Derecho Internacional Privado. Op. cit.

28 Madrid Martinez Claudia. “Relaciones de las empresas con sus clientes. Relaciones de consumo”. In: Madrid Martinez Claudia (Coord.) La Empresa y sus Negocios de Carácter Internacional. (Caracas: Academia de Ciencias Políticas y Sociales, 2011). P. 154.

29 Madrid Martinez Claudia. “Venezuela”. In: FERNÁNDEZ ARROYO, Diego P. (Ed.) Consumer Protection in International Private Relationships. La Protection des Consommateurs dans les Relations Privées Internationales. (Asunción: CEDEP, 2010). P. 560.

30 Vieira Luciane Klein. Protección Internacional del Consumidor. Procesos de Escasa Cuantía en los Litigios Transfronterizos. page 55.

31 Madrid Martinez Claudia. “El derecho internacional privado venezolano y su respuesta frente al consumidor internacional”. In: Marques Cláudia Lima; Fernandez Arroyo Diego P.; Ramasay Iain; Pearson Gail (dirs.) The Global Financial Crisis and the Need for Consumer Regulation: new developments on international protection of consumers. La Crisis Financiera Mundial y la Necesidad de Regulación de la Protección de los Consumidores: nuevos desarrollos en la protección internacional de los consumidores. (Porto Alegre/Asunción: Orquestra Editora, 2012). P. 301.





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